1.

This request for a preliminary ruling, lodged at the Court Registry on 3 April 2013 by the Tribunal administratif de Melun (France), concerns the nature and scope of the right to be heard under Article 41(2)(a) of the Charter of Fundamental Rights of the European Union (‘the Charter’) before the adoption of a return decision pursuant to Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. ( 2 )

2.

The request was made in proceedings between Ms Mukarubega and the préfet de police (Police Commissioner) and the Préfet de la Seine-Saint-Denis (Prefect of Seine-Saint-Denis). Ms Mukarubega seeks annulment of the decisions of 26 October 2012 by which the Police Commissioner rejected her application for a residence permit and imposed on her the obligation to leave French territory, as well as annulment of the decisions of 5 March 2013 by which the Prefect of Seine-Saint-Denis required her to leave French territory, refused to grant her a period for voluntary departure, fixed the country to which she was liable to be removed and placed her in administrative detention.

3.

In this Opinion, a fair balance must be sought between the right to be heard before the adoption of a return decision and the need not to needlessly or abusively prolong the return procedure, in order not to jeopardise the combating of illegal immigration.

4.

Article 3 of Directive 2008/115, headed ‘Definitions’, provides:

‘For the purpose of this Directive:

…

…’

5.

Article 5 of Directive 2008/115, headed ‘Non-refoulement, best interests of the child, family life and state of health’, provides:

‘When implementing this Directive, Member States shall take due account of:

and respect the principle of non-refoulement.’

6.

Article 6 of the directive, headed ‘Return decision’, provides:

‘1.   Member States shall issue a return decision to any third-country national staying illegally on their territory, without prejudice to the exceptions referred to in paragraphs 2 to 5.

…

4.   Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.

…

6.   This Directive shall not prevent Member States from adopting a decision on the ending of a legal stay together with a return decision and/or a decision on a removal and/or entry ban in a single administrative or judicial decision or act …’

7.

Article L. 313-11 of the Code de l’entrée et du séjour des étrangers et du droit d’asile (Code on the Entry and Stay of Foreign Nationals and the Right of Asylum; ‘CESEDA’) provides:

‘Except where his/her presence constitutes a threat to public policy, a temporary residence card marked “private and family life” shall automatically be issued:

…

…

8.

Article L. 313-14 of CESEDA provides:

‘The temporary residence card mentioned in Article L. 313-11 … may be issued, except where his presence constitutes a threat to public policy, to a foreign national who is not living polygamously whose admission to stay meets humanitarian considerations or is justified in the light of the exceptional reasons claimed by him, without it being possible to rely on the condition laid down in Article L. 311-7 to oppose this.

…’

9.

Article L. 511-1 of CESEDA provides:

…

10.

Article L. 742-7 of CESEDA provides:

‘A foreign national who has been definitively refused recognition of refugee status or subsidiary protection and who cannot be authorised to remain in French territory on another basis must leave French territory, which failing he may be subject to a removal order under Title I of Book V and, where appropriate, to penalties under Chapter I of Title II of Book VI.’

11.

Ms Mukarubega, a Rwandan national born on 12 March 1986, entered France on 10 September 2009 with her passport, bearing a visa.

12.

On 4 December 2009 she applied to the Police Commissioner for permission to stay in France as an applicant for asylum. During the asylum procedure, Ms Mukarubega was given provisional authorisation to stay in France.

13.

By decision of 21 March 2011, the Director of the Office français de protection des réfugiés et apatrides (Office for the protection of refugees and stateless persons) (OFPRA) refused to grant Ms Mukarubega refugee status. That decision was confirmed by decision of the Cour nationale du droit d’asile (National Court of Asylum) (CNDA) of 30 August 2012, which was notified to her on 10 September 2012.

14.

The Police Commissioner, by decision of 26 October 2012, refused Ms Mukarubega permission to stay as an applicant for asylum and added to that refusal an obligation to leave French territory (‘the first return decision’). Rwanda was fixed as the country to which she was to be removed and she was granted a period for voluntary departure of 30 days.

15.

Notwithstanding that return decision, Ms Mukarubega remained illegally in France until the beginning of March 2013, when she attempted to go to Canada with a false Belgian passport. She was then arrested by French police and placed in police custody on 4 March 2013 for fraudulent use of an administrative document.

16.

While in police custody, Ms Mukarubega was interviewed and was heard on her personal and family situation, her working life, her application to stay in France and her possible return to Rwanda.

17.

The Prefect of Seine-Saint-Denis, by decision of 5 March 2013, obliged Ms Mukarubega to leave French territory, refused to grant her a period for voluntary departure and fixed Rwanda as the country to which she was liable to be removed (the ‘second return decision’). In addition, by a decision of the same date, the Prefect directed that Ms Mukarubega be placed in administrative detention.

18.

On 6 March 2013 Ms Mukarubega brought an action before the Tribunal administratif de Paris for annulment of the first return decision. She simultaneously brought an action before the Tribunal administratif de Melun against the second return decision. By order of 7 March 2013, the Tribunal administratif de Paris transferred the application submitted by Ms Mukarubega to the Tribunal administratif de Melun.

19.

By decision of 8 March 2013, the judge appointed by the President of the Tribunal administratif de Melun annulled the decision placing Ms Mukarubega in administrative detention on the ground that that decision had been served on her prior to the second return decision and was therefore devoid of any legal basis.

20.

Ms Mukarubega’s plea before the Tribunal administratif de Melun was that her right to be heard in all proceedings had been infringed, in that she was not given the opportunity to present specific observations on her personal circumstances before the adoption of the first return decision, which was taken at the same time as the refusal of the residence permit which was served on her. She maintains that the same principle was infringed by the second return decision, namely the decision of the Prefect of Seine-Saint-Denis of 5 March 2013.

21.

The referring court notes that, under the terms of Article L. 511-1 of CESEDA, a foreign national who has lodged an application for a residence permit may, at the same time as having his residence permit refused, be placed under an obligation to leave French territory. According to that court, the foreign national may adduce before the administrative authority, which is not obliged to adopt a decision to remove him, any matters relating to his personal circumstances.

22.

However, it adds that the decision refusing permission to stay may be made, as in this case, without the interested party being warned of it and long after the application for a residence permit was lodged, so that the foreign national’s personal circumstances could have changed since that application was lodged.

23.

The referring court considers that the response to the pleas submitted by Ms Mukarubega depends on whether the right to be heard in all proceedings must be interpreted as requiring the administrative authority to enable the interested party to present observations where the administrative authority intends to issue a return decision in respect of an illegally staying foreign national, irrespective of whether or not that return decision is a result of the refusal of a residence permit, and in particular in a situation where there is a risk of absconding. According to that court, an illegally staying foreign national who is under an obligation to leave French territory may bring misuse of powers proceedings before the administrative court, the purpose of which is to stay enforcement of the removal measure. In its view, the response to the above pleas in law also depends on whether the suspensive effect of the legal proceedings before the administrative court means that it is possible to dispense with the prior right of an illegally staying foreign national to make his observations known with regard to the proposed removal measure to be taken against him.

24.

In those circumstances, the Tribunal administratif de Melun decided, in order to resolve the dispute, to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

25.

Written observations were submitted by Ms Mukarubega, the French Government, the Greek Government, the Netherlands Government and the European Commission. At the hearing on 8 May 2014, Ms Mukarubega, the French Government and the Commission presented oral argument.

26.

Ms Mukarubega considers that the Court should apply Article 41 of the Charter to the return decisions because, following the judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 19 to 21, the fundamental rights guaranteed by the Charter must be respected where national legislation falls within the scope of EU law (‘EU law’). In the view of Ms Mukarubega, the return decisions adopted against illegally-staying foreign nationals constitute an ‘implementation’ of EU law by the prefectoral authority.

27.

Ms Mukarubega considers that the right to be heard implies, first of all, clear and relevant prior information of the measures envisaged so that the administrative decision is not totally unexpected. She considers that, in addition to the obligation to provide such information, the right to be heard should also require the authority to verify with the foreign national all the relevant facts of his personal circumstances before issuing a return decision.

28.

Ms Mukarubega points out in this regard that the first return decision was adopted merely on the finding that her application for asylum had been rejected by the CNDA, more than 33 months after her case was lodged, and her personal circumstances, which had changed, had not been examined on the date when the decision was adopted.

29.

According to the party concerned, the decision refusing residence was taken only in the light of the evidence contained in the case-file concerning her residence application and the return decision was not linked to that case, whereas it could not be taken by the Police Commissioner other than with regard to evidence which was not requested by the authorities or spontaneously communicated by the foreign national. Ms Mukarubega therefore considers that the return decision is not the logical, necessary and sole consequence of the refusal of residence.

30.

She points out in this regard that, although Article 6(1) of Directive 2008/115 provides in principle that ‘Member States shall issue a return decision to any third-country national staying illegally on their territory’, that rule applies ‘without prejudice to the exceptions referred to in paragraphs 2 to 5’. However, those exceptions accord to the Member States very broad discretion with regard to the appropriateness of the return decision.

31.

Ms Mukarubega also points out that the second return decision was taken after a police interview which lasted 50 minutes and was focused mainly on her ‘journey’, the offence of forgery and use of a false administrative document and, more generally, her administrative situation. She states that she was not informed at any time during her period of police custody that she might be the subject of a further return decision. She was also not asked, a fortiori, to present observations on that point.

32.

Finally, Ms Mukarubega considers that the right to be heard should be accorded even where there is a risk of absconding. A derogation from such a principle can be admitted only where there is an exceptional risk to national security or a fundamental interest of the State. The suspensive effect of the legal proceedings before the administrative court does not mean that it is possible to dispense with the prior right of an illegally staying foreign national to make his observations known with regard to the proposed removal measure, to be taken against him, which adversely affects his interests.

33.

The French Government considers that it is clear from the very wording of Article 41 of the Charter that it is not addressed to the Member States but solely to the institutions and bodies of the European Union. ( 3 ) However, according to settled case-law, the right to be heard is a general principle of EU law pertaining, on the one hand, to the right to good administration, laid down in Article 41 of the Charter and, on the other, to observance of the rights of the defence and the right to a fair trial enshrined in Articles 47 and 48 of the Charter. According to the same government, observance of the right to be heard is required not only of the institutions of the European Union, by virtue of Article 41 of the Charter, but also — because it constitutes a general principle of EU law — of the authorities of each of the Member States when they adopt decisions falling within the scope of EU law, even when the applicable legislation does not expressly provide for such a procedural requirement. ( 4 )

34.

The French Government considers that, under Directive 2008/115, a return decision directly and necessarily results from the finding that the person concerned has stayed illegally. In fact, once the illegal nature of the stay has been determined, the Member States are obliged to issue a return decision. According to that government, Article 6(1) of Directive 2008/115 obliges Member States to issue a return decision against any third-country national staying illegally on their territory, except in the specific cases referred to in paragraphs (2) to (5) of that article. It follows, in its view, that, where the third-country national has been heard in the context of the procedure for examining his right to stay, he does not have to be heard again before a return decision is issued.

35.

The French Government adds that, in view of the number of applications for residence permits processed each year by the authorities, the burden resulting from hearing the person concerned again before issuing a return decision might well hinder all the more the preparation of that decision, with knowledge of the facts, although the protection of the foreign national concerned would not be significantly increased, and bring about the failure of the return procedure itself by making it impossible for Member States to prevent an illegally staying person from absconding.

36.

The French Government points out that, in the main proceedings, Ms Mukarubega, whose application for asylum had been definitively rejected, was fully aware of the illegality of her stay on French territory and that she might be the subject of a removal measure. It observes that it is, moreover, clear from the written record of her interview while in police custody that she was fully aware of that risk.

37.

It also states that a third-country national who has been refused a residence permit can, at any time, go to the prefecture and be heard again in order to submit new evidence for the purpose of rendering his situation legal.

38.

As to the second return decision, the French Government states that Ms Mukarubega was placed in police custody on the basis of Article 62(2) of the Code of Criminal Procedure. While in custody, she was interviewed by police officers about her situation, in particular with regard to right of residence. In the view of that government, a foreign national is protected while in police custody by procedural safeguards, in particular the right to be assisted by a lawyer and an interpreter.

39.

The French Government proposes, in the alternative, that the answer to the second question should be that Directive 2008/115 must be interpreted as meaning that the possibility for the third-country national of bringing legal action with suspensive effect before a court against the return decision concerning him and of submitting before the court all evidence relevant to his personal situation offsets any limitations on the right to be heard established before that decision is issued.

40.

The Netherlands Government considers that the principle of the rights of the defence, as now contained in Article 41 of the Charter, includes the right of each person to be heard before a decision is adopted which might adversely affect him. In the view of that government, a finding that the principle of the rights of the defence has been infringed can occur only after all the aspects and components of the whole procedure have been examined, as such an infringement cannot, in principle, result from procedural irregularities if they are ‘repaired’ during the procedure taken as a whole without any actual prejudice being suffered by the person concerned.

41.

As to the first return decision adopted against Ms Mukarubega, the Netherlands Government considers that there has been no infringement of the principle of the rights of the defence. In its view, the right to be heard can be assessed only in the light of the prejudicial elements of a return decision. However, according to the Netherlands Government, neither the determination that the foreign national has been staying illegally, which has already been established by the absence of a valid residence permit, nor the obligation to return, resulting from the foreign national’s lack of a valid residence permit, are prejudicial. On the other hand, the fact that a period is fixed within which the foreign national must leave the territory of the Member State is prejudicial and entails the obligation to hear the person concerned on that aspect of the return decision, particularly where the maximum period of 30 days may be reduced. However, according to the Netherlands Government, if the person concerned has the possibility of bringing an action with suspensive effect before an administrative court concerning the legality of the return decision, the fact that he has not been heard in advance by the administrative authority again does not constitute a disproportionate disadvantage or adversely affect the person concerned. Moreover, it considers that the principle of the rights of the defence cannot be applied without restriction, unless the purpose of Directive 2008/115 is to be jeopardised.

42.

Finally, the Netherlands government considers that the second return decision should not be regarded as such a decision within the meaning of Directive 2008/115 and, therefore, should not be examined in the light of the principle of the rights of the defence, since the first return decision had already established that Ms Mukarubega was staying illegally in France and imposed on her a deadline for leaving France. Thus, the return procedure within the meaning of Directive 2008/115 was initiated when the first return decision was adopted, and any further coercive measures, such as the second return decision, must be regarded as acts occurring as part of the enforcement of a return decision already taken.

43.

The Greek Government considers that the right to be heard in advance cannot be affected by the existence of administrative or judicial proceedings. However, it notes that, in many cases, as in the present case, the return decision is inextricably linked to an application procedure for international protection status already in existence, the first return decision in the present case being the direct consequence of the rejection of the application for asylum at both first and second instances. In those circumstances, the right to be heard before the adoption of a return decision is respected, as the person concerned had the possibility of explaining her point of view in the procedure for the examination of her asylum application.

44.

According to the same government, the fact that some time elapsed between the decision rejecting the asylum application and the return decision does not change anything, because an interval of two months and ten days could not change the decisive factors in the case. It also considers that the person concerned cannot simply rely on the abstract infringement of her right to be heard in advance; on the contrary, she must establish, in specific and precise terms, the existence of all decisive factors which might not have been taken into account by the authorities and might have led to a different result.

45.

The Commission observes that the right to be heard in all proceedings is enshrined in Article 41 of the Charter. According to the Commission, although it has been stated that that article of the Charter does not apply to EU institutions and bodies, the Court held in M., EU:C:2012:744, that ‘it must be stated that, as follows from its very wording, that provision is of general application’. ( 5 ) The Commission considers that, where the Member States adopt return decisions, they are implementing EU law and are therefore bound by the obligations resulting from the Charter. ( 6 )

46.

The Commission considers that the competent authorities must hear the person concerned, whilst taking into account the purpose of Directive 2008/115, which is to establish an effective procedure ensuring the most expeditious return of illegally staying third-country nationals to their country of origin. In its view, the right to be heard must allow the authorities to prepare the case file in such a manner that it can take a decision with full knowledge of the facts and state the reasons for the decision in an appropriate manner so that, where necessary, the person concerned can properly exercise his right of appeal. However, it considers that that right cannot cause ‘the administrative procedure to be re-opened indefinitely’.

47.

As to the first return decision in the present case, the Commission considers that the possibility under French law of adopting a decision which simultaneously refuses residence to an applicant for asylum and orders the foreign national to leave French territory complies with Directive 2008/115. In its view, such procedural economy is justified because the obligation to leave French territory is the logical consequence of a refusal to issue a residence permit. It considers that, in so far as the reasons why the person concerned applied for a residence permit were examined in the context of the observations submitted in connection with her application for asylum and during the appeal proceedings against rejection of that application, it may be considered that the right to be heard prior to a return decision has been respected, especially as, in the present case, the return decision appears to have been notified to the person concerned less than two months after the rejection of her asylum application.

48.

According to the Commission, where a considerable period of time elapses between the hearing of the person concerned during the procedure for examining his/her file and the adoption of a decision, it is for the national court to verify whether the person concerned has had the opportunity to communicate any new factual evidence which might not have been taken into account during the procedure.

49.

As to the second return decision, the Commission considers that no exception can be made to the right to be heard on the basis either of the existence of a previous return decision or of a risk of absconding, and the person concerned might, if necessary, be heard during her detention for the purpose of verifying her right of residence.

50.

Finally, the Commission considers that the existence of an action with suspensive effect before an administrative court does not allow an exception to be made to respect for the right of an illegally staying foreign national to be heard prior to adoption of a return decision.

51.

The scope of the Charter, as regards actions of the Member States, is defined in Article 51(1) thereof, which states that the provisions of the Charter are addressed to the Member States only when they are implementing EU law.

52.

As the Court has held, Article 51 ‘of the Charter thus confirms the Court’s case-law relating to the extent to which actions of the Member States must comply with the requirements flowing from the fundamental rights guaranteed in the legal order of the European Union’. ( 7 )

53.

The Court adds, in paragraph 19 of the judgment in Åkerberg Fransson, EU:C:2013:105, and in paragraph 33 of the judgment in Pfleger and Others, EU:C:2014:281, that ‘[t]he Court’s settled case-law … states, in essence, that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court has already observed that it has no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation falls within the scope of EU law, the Court, when requested to give a preliminary ruling, must provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation is compatible with the fundamental rights the observance of which the Court ensures’.

54.

The Court has also held, in paragraph 21 of the judgment in Åkerberg Fransson (EU:C:2013:105) and in paragraph 34 of Pfleger and Others, EU:C:2014:281, that ‘[s]ince the fundamental rights guaranteed by the Charter must therefore be complied with where national legislation falls within the scope of EU law, situations cannot exist which are covered in that way by EU law without those fundamental rights being applicable. The applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter’.

55.

It is true that, although Article 51 of the Charter defines the scope thereof in respect of both the Union and the Member States under the title ‘General provisions governing the interpretation and application of the Charter’, Article 41 of the Charter establishes the right to be heard only in respect of the ‘institutions and bodies of the Union’, ( 8 ) which the Court noted in the judgment in Cicala, EU:C:2011:868, paragraph 28, cited by the French Government in its written observations, ( 9 ) although the Court did not make this a decisive argument for the approach which it adopted in that judgment.

56.

It seems to me neither consistent nor in accordance with the case-law of the Court ( 10 ) that the wording of Article 41 of the Charter can allow the introduction of an exception to the rule laid down in Article 51 thereof enabling the Member States not to apply an article of the Charter, even when they are implementing EU law. I am therefore clearly in favour of the applicability of Article 41 of the Charter to the Member States when they are implementing Union law, but, in any event, as the French Government points out, the right to be heard is, according to settled case-law, a general principle of EU law ‘pertaining, on the one hand, to the right to good administration, laid down in Article 41 of the Charter and, on the other, to observance of the rights of defence and the right to a fair trial enshrined in Articles 47 and 48 of the Charter’. ( 11 ) Accordingly, that right must be observed at least by the authorities ‘of each of the Member States when they adopt decisions falling within the scope of EU law’. ( 12 )

57.

As I stated in paragraph 49 of my View in G. and R., C‑383/13 PPU, EU:C:2013:553, point 49, ‘[t]he national authorities’ obligation to respect the right of a person to be heard before the adoption of a decision that is liable to affect his interests adversely has long been affirmed in the settled case-law of the Court, and Article 41(2)(a) of the Charter confirms that obligation and establishes it as having constitutional status’.

58.

In the present case, the adoption of a return decision by a Member State is an implementation of Article 6(1) of Directive 2008/115 and, therefore, of EU law within the meaning of the case-law of the Court and Article 51(1) of the Charter. It follows that, in such a situation governed by EU law, the Member States must apply the fundamental rights guaranteed by the EU legal order, including the right to be heard, where the national authorities are minded to adopt a measure which will adversely affect an individual. ( 13 )

59.

A return decision of this kind, as defined by Article 3(4) and referred to in Article 6(1) of Directive 2008/115, constitutes, contrary to the observations of the Netherlands Government, ( 14 ) a measure which will adversely affect the individual to whom it is addressed. By that decision, a Member State is declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return. ( 15 )

60.

Recital 6 in the preamble to Directive 2008/115 states that, when Member States adopt return decisions, they must do so through a fair and transparent procedure.

61.

However, Directive 2008/115 does not establish a specific procedure for hearing a third-country national before the adoption of a return decision. ( 16 ) The procedural guarantees provided for in Chapter III of Directive 2008/115 only concern the form of the return decision (Article 12), ( 17 ) the remedies (Article 13) and the safeguards pending return (Article 14).

62.

That said, in accordance with the Court’s case-law, observance of the right to be heard is required even where the applicable legislation does not expressly provide for such a procedural requirement. ( 18 )

63.

It follows that the conditions under which observance of the rights of defence of illegally staying third-country nationals and the consequences of infringement of those rights are to be ensured fall within the scope of national law in so far as the rules adopted to that effect are not more unfavourable than those to which individuals in comparable situations under national law are subject (the principle of equivalence) and that they do not make it impossible in practice or excessively difficult to exercise the rights of defence conferred by the European Union legal order (the principle of effectiveness). ( 19 )

64.

However, as the Court held in the judgment in M., EU:C:2012:744, paragraph 87 and the case-law cited, ‘[t]he right to be heard guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely’. The Court adds in the same judgment that ‘[t]hat right also requires the authorities to pay due attention to the observations thus submitted by the person concerned, examining carefully and impartially all the relevant aspects of the individual case and giving a detailed statement of reasons for their decision’. ( 20 )

65.

Therefore, the procedural autonomy of the Member States together with the absence of a specific procedure in Directive 2008/115 cannot result in a third‑country national being deprived of the right to be heard by the competent national authority before the adoption of a return decision.

66.

Article 52(1) of the Charter nevertheless allows limitations on the exercise of the rights enshrined in the Charter, in so far as the limitation concerned is provided for by law, respects the essence of the fundamental right in question and, subject to the principle of proportionality, is necessary and genuinely meets objectives of general interest recognised by the European Union. ( 21 ) It follows that the rights of defence do not constitute unfettered prerogatives and may be restricted in certain circumstances. ( 22 )

67.

Before examining more specifically the application of these principles to the circumstances of the main proceedings, it should be borne in mind that the objective of the right to be heard established by Article 41(2)(a) of the Charter is, first, to enable the case to be examined and the facts to be established in as precise and correct a manner as possible and, second, to ensure that the person concerned is in fact protected. ( 23 ) That provision is intended in particular to ensure that any decision adversely affecting a person is adopted with full knowledge of the facts.

68.

According to settled case-law, Directive 2008/115 concerns only the return of illegally staying third-country nationals and is thus not designed to harmonise in their entirety the rules of the Member States on the stay of foreign nationals. ( 24 ) However, once the illegality of the stay has been established, the competent national authorities must, under Article 6(1) of that directive and without prejudice to the exceptions provided for in Article 6(2) to (5) thereof, adopt a return decision. ( 25 ) Moreover, Article 6(6) of Directive 2008/115 allows Member States to adopt ‘a decision on the ending of a legal stay together with a return decision’. ( 26 )

69.

As the French Government rightly points out, ( 27 ) Article 6(1) of Directive 2008/15 therefore obliges a Member State which has decided not to issue a residence permit to a third-country national to issue a return decision against him. Therefore, without prejudice to the exceptions provided for in Article 6(2) to (5) thereof, I concur with the statements made by the French Government, ( 28 ) the Greek Government ( 29 ) and the Commission ( 30 ) that the adoption of a return decision necessarily results from, and is the logical consequence of, the decision determining the illegality of the stay of the person concerned.

70.

I therefore consider that, in the absence of provisions of EU law establishing a specific procedure for guaranteeing to illegally staying third‑country nationals the right to be heard before the adoption of a return decision, Article 41(2)(a) of the Charter cannot be interpreted as meaning that, where the competent national authority intends to issue a decision determining illegal residence at the same time as a return decision, ( 31 ) that authority must necessarily ( 32 ) inform or ‘warn’ ( 33 ) the person concerned of it beforehand so as to enable that person to make his observations known with regard to the proposed return decision. ( 34 )

71.

However, it is necessary, in order for the procedure to be fair and transparent, to comply with the obligation laid down in Article 6(1) of Directive 2008/115, first, that the national law explicitly and unequivocally lays down the obligation to leave national territory in cases of illegal stays and, second, that the competent national authorities ensure that the person concerned is properly heard in the procedure relating to his application for residence or, where appropriate, on the illegality of his stay. In such a case, the obligation to hear the person concerned again before issuing the return decision would be redundant and disproportionate.

72.

In that regard, I entirely agree with the Commission’s observation that the right to be heard before the adoption of a return decision cannot be used to ‘re‑open the administrative procedure indefinitely’. ( 35 ) It is, in fact, necessary to prevent the procedure from becoming too cumbersome or being needlessly prolonged without increasing the protection of the person concerned, ( 36 ) so that a balance can be maintained between the fundamental right of the person concerned to be heard before the adoption of a decision adversely affecting him and the obligation of the Member States to combat illegal immigration.

73.

In the present case, by a decision of 26 October 2012, that is to say, two months after Ms Mukarubega was notified of the CNDA decision (confirming the OFPRA decision) to refuse her refugee status, the French authorities concurrently refused Ms Mukarubega permission to stay as an applicant for asylum and obliged her to leave French territory. I note in this regard that Article L. 511-1, I, 3, of CESEDA explicitly provides that the competent French authority may oblige a foreign national who is not a national of a Member State of the Union, of another State which is a party to the Agreement on the European Economic Area (EEA) or of the Swiss Confederation, and who is not a family member of such a national, to leave French territory if the foreign national has been refused the issue or renewal of a residence permit, or if the residence permit which was issued to him has been withdrawn. ( 37 )

74.

Moreover, it is clear from the file before the Court that Article L. 742-7 of CESEDA states that a foreign national who has been definitively refused recognition of refugee status or subsidiary protection and who cannot be authorised to remain in French territory on another basis must leave French territory or be subject to a removal order.

75.

It is also clear that the first return decision occurred after the conclusion of the procedure for reviewing Ms Mukarubega’s right to stay as an applicant for asylum, a procedure which enabled her to state exhaustively all the reasons for her application for asylum, ( 38 ) and after she had exhausted all the remedies provided for in the national law concerning the rejection of that application. ( 39 ) Moreover, it is not disputed by Ms Mukarubega that she was heard on her application for asylum, first by OFPRA and then by CNDA, properly and effectively and in conditions enabling her to state all the reasons for her application.

76.

However, Ms Mukarubega complains in particular that the competent national authorities did not hear her regarding the change in her personal circumstances between the date of her application for asylum and the date of adoption of the first return decision, that is to say, a period of 33 months. This argument is irrelevant, as Ms Mukarubega was heard for a second time on her application for asylum by CNDA on 17 July 2012, in other words, six weeks before the CNDA decision to refuse her asylum and a little over three months before the first return decision, which cannot be regarded as an unreasonably long time.

77.

I consider that, in circumstances such as those in the main proceedings, the national authorities have adopted the return decision in conformity with Article 41(2)(a) of the Charter on the right to be heard.

78.

I therefore propose that the answer to the first question referred should be that Article 41(2)(a) of the Charter must be interpreted as meaning that it does not require a national authority to hear a third-country national again when it intends to issue a return decision after determining the illegality of his stay following a decision refusing him asylum upon the conclusion of a procedure which fully respected his right to be heard.

79.

In the present case, this conclusion only covers the case submitted by Ms Mukarubega with a view to obtaining refugee status, the procedure which led to her being refused that status, thereby determining the illegality of her stay, and the return decision issued against her which is the logical and necessary consequence thereof in the light of Article 6(1) of Directive 2008/115.

80.

The same conclusion therefore applies without prejudice to another case which national legislation allows a third-country national to submit on another legal basis, which is precisely the situation with respect to the French legislation.

81.

The French Government points out in this regard that, in France, a third‑country national who has been refused a residence permit may, at any time, present himself at the prefecture in order to be heard there again for the purpose of submitting new evidence with a view to rendering his situation legal.

82.

In particular, Article L. 313-11-7 of CESEDA allows a residence permit to be issued to a third-country national for reasons based on respect for that person’s private and family life, where the illegality of his stay cannot be invoked against him. The same applies to Article L. 313-11-11 of CESEDA, for reasons based on his state of health. Moreover, according to the French Government, Article L. 313‑14 of CESEDA allows a residence permit to be issued to a third-country national when that meets humanitarian considerations or is justified in the light of exceptional reasons claimed by him, where, again, it is not possible to use the illegality of that national’s stay against him.

83.

These French provisions seem to me to fall within the scope of Article 5(b) and (c) of Directive 2008/115 and the exception to Article 6(1) of Directive 2008/115 provided for in paragraph (4) of that article. ( 40 ) In fact, under Article 6(4) of Directive 2008/115, the Member States may grant a residence permit for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision is issued. If a return decision has already been issued, it is withdrawn or suspended for the duration of validity of the residence permit.

84.

It is clear that where, as in France, the national legislation provides for the possibility of issuing a residence permit to a third-country national for exceptional reasons under Article 6(4) of Directive 2008/115, a return decision cannot be issued against a person who has filed an application for residence based on one of those reasons without hearing him in advance in this regard. Otherwise, a return decision, instead of being based on precise and up-to-date information, may be issued on the basis of incomplete or out-of-date facts.

85.

I consider that, in such a case, it is for the person concerned to submit a reasoned application based on reasons provided for by national legislation and to supplement it with information and evidence as necessary.

86.

This might be the situation, subject to verification by the referring court, with regard to the application which, on the basis of Article L. 313-14 of CESEDA, was filed by Ms Mukarubega on 28 September 2012, in other words, after the definitive rejection of her application for asylum by CNDA (that is to say, 10 September 2012) and before the notification of the first return decision (that is to say, 26 October of the same year).

87.

It is for the referring court to verify whether the change since the filing of her application for asylum in her personal circumstances, alleged in that second case by Ms Mukarubega, constitutes a reason for rendering her situation legal under Article L. 313-14 of the CESEDA and, where appropriate, was taken into account by the competent national authorities before the adoption of the first return decision. At the time of such verification, the referring court must ensure that the application in question was filed in good faith and does not merely constitute a delaying tactic by Ms Mukarubega with the sole intention of delaying or even jeopardising the procedure before the national authorities and the possible adoption of a return decision. ( 41 )

88.

One might wonder, like the Netherlands Government, ( 42 ) whether the adoption of a second return decision against Ms Mukarubega was necessary in this case in view of the fact that she did not even contest ( 43 ) the first return decision before 6 March 2013. ( 44 ) However, this is of no relevance for the purposes of the main proceedings. I consider, in fact, that the competent national authorities, having opted, for whatever reasons, for the adoption of a second return decision, were obliged, under Article 41(2)(a) of the Charter, to hear Ms Mukarubega before the adoption of the second decision.

89.

It is clear from the file before the Court that, before the adoption of the second return decision, Ms Mukarubega was detained in police custody on the basis of Article 62(2) of the French Code of Criminal Procedure ( 45 ) for fraudulent use of an administrative document. As Ms Mukarubega’s freedom was limited during her period of police custody, there was no risk of absconding which, under Article 52(1) of the Charter, might justify in the general interest a limitation on her right to be heard under Article 41(2)(a) thereof.

90.

The written record of the police interview indicates that Ms Mukarubega was heard concerning her right of residence in France. She was asked whether she agreed to return to her country of origin and whether she wanted to stay in France. It is clear from that record that she knew perfectly well that she was not entitled legally to stay in France, despite how much she had done to achieve it, and that she was aware of the consequences of her illegal situation. Ms Mukarubega stated that, as she did not have any ‘ID’ and could not ‘work’ or ‘remain in France’, she had acquired a false Belgian passport in order to go to Canada. I note that, although the interview was conducted mainly in the form of questions and answers, Ms Mukarubega was invited, in the course of it, to add any other observations which she considered to be relevant.

91.

It follows that Ms Mukarubega was given the opportunity to be heard on factors other than ‘the mere fact of an illegal stay’. ( 46 ) Taking into account the whole procedure for hearing Ms Mukarubega and on condition that the guarantees established by French legislation ( 47 ) and case-law ( 48 ) have been respected, ( 49 ) (in particular, the assistance of a lawyer), which it is for the referring court to verify, I consider that the fact that the interview lasted 50 minutes cannot, in itself, permit the conclusion that it was insufficient as a hearing.

92.

In view of the foregoing, I am adding a factor to my answer to the first question, that the fact that a national authority has respected the right of a person concerned to be heard, as required by the general principles of EU law laid down in Article 41(2)(a) of the Charter, in a particular case (for example, an application for asylum) does not exempt it from hearing that person again in the context of a procedure initiated on a different legal basis (for example, an application for legalisation of residence for humanitarian reasons), even if the aim of the two applications is substantially the same (in this case, recognition of the legality of residence).

93.

By this question, the referring court asks the Court whether the right of an illegally staying third-country national to bring, under national law, proceedings with suspensive effect before a national court ( 50 ) makes it possible for the national administrative authorities not to hear him before issuing a decision against him, in this case, a return decision.

94.

Clearly, this question is relevant only if it is considered that, in circumstances such as those in the main proceedings, the right to be heard has not been respected, which is not my view.

95.

In any event, I consider that the rights established by Articles 41 and 47 of the Charter are quite distinct rights and apply in different contexts, the first in the pre-litigation administrative context and the second in the context of court proceedings. ( 51 ) It follows that the rights in question cannot be merged lest the right of an individual to be heard be denied when the administrative authorities are minded to adopt a measure which will adversely affect that individual and a judicial remedy is available to him. The EU legislature’s intention to protect individuals subject to an administrative procedure throughout that procedure is clear from the relationship between Articles 41 and 47 of the Charter. Those two very different rights must not be conflated, otherwise there could be a break in the continuity of the system of rights of the defence safeguarded by the Charter. ( 52 )

96.

Therefore, and on condition that limitations allowed by Article 52(1) of the Charter ( 53 ) are not applicable, the fact that the person concerned is the subject of a return decision and is entitled under national law to bring proceedings with suspensive effect against that return decision cannot, in my view, retroactively cover non-observance of Article 41 of the Charter by the national administrative authorities.

97.

However, it should be noted that, in paragraph 85 of Texdata Software, C‑418/11, EU:C:2013:588, the Court held that ‘it does not appear that … the imposition of an initial penalty of EUR 700 [on a company which fails to submit its annual accounts to the competent court] without prior notice or any opportunity for the company concerned to make known its views before the penalty is imposed impairs the substance of the fundamental right at issue, since the submission of a reasoned objection against the decision imposing the periodic penalty immediately renders that decision inoperable and triggers an ordinary procedure under which there is a right to be heard’.

98.

The conclusions reached by the Court in Texdata Software, EU:C:2013:588, are not, in my view, transposable to this case. That case concerned a purely financial penalty, whereas the return decisions at issue in the main proceedings can have a considerable impact on the actual life of a human being. Therefore, I cannot see any reason, especially as there is no risk of absconding, which might be relied on as an objective of general interest justifying not conducting a prior hearing ( 54 ) in the main proceedings.

99.

In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions referred for a preliminary ruling by the Tribunal administratif de Melun: